The “Drop-Dead” Rule in Civil Litigation

Lawyers are required to navigate a myriad of potential issues for their clients during the course of litigation. Clients rely on their lawyers not only to handle highly complex questions of law, but also to address the procedures required to bring their matters before the courts. While these rules of procedure are typically quite routine, they can still cause serious issues for the unprepared.

This articles addresses one such procedural rule: the “drop dead rule”. It will cover what the drop dead rule is and the court’s evolving interpretations of what is required of a litigant who wishes to avoid having the otherwise valid claim dismissed for delay.

First, what is a drop dead rule? The rule exists to ensure that claims are dealt with in a timely manner. This desire for prompt resolution is reflected in Alberta’s Rules of Court, which include two means for the court to dismiss a claim in the event of delay: (1) a discretionary rule, and (2) a mandatory “drop dead” rule. The latter, officially known as “Dismissal for Long Delay”, currently reads as follows:

4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless […]

The informal name is quite appropriate; if 3 or more years pass without a significant advance then, on application of the opposing party, the action drops dead.

Gone are the days when an irresponsible lawyer could save the action by taking a procedurally required, but essentially meaningless step.

As such, it is very clear that all one must do to avoid dismissal of one’s court case under the drop dead rule is significantly advance the action at least once every 3 years. If at this point you are asking, “what constitutes a significant advance?” you’re not alone; lawyers find themselves asking this question primarily in two scenarios. The first is when they feel that the action they are defending against has been inactive for quite some time and they start to wonder if they can get it dismissed. The second scenario could not exist without the first – a lawyer begins to consider this question, quite possibly in a panic, when they are served with an application to have their client’s action dismissed pursuant to the rule. Notably, this rule is mandatory as it requires such an action be dismissed instead of simply allowing dismissal. Regardless of the injustice you may have suffered, your case is dead in its tracks.

So what is a significant advance? Courts have considered the meaning of the drop dead rule, but unfortunately, the rule has not always appeared as it does now. While the exact wording has changed, the basic concept has not: after the passing of an amount of time, on application, the court must dismiss an action which has not be sufficiently advanced. However, in the past it was not a “significant advance” that was required, but instead a “material advance.” While these phrases appear similar, their interpretations differ.

In 2000, while considering the older version of the drop dead rule, the Alberta Court of Appeal in Morasch v Alberta, 2000 ABCA 24 determined that a completed mandatory procedural step was always an advance towards trial that, even if not material in the strictest sense, would still satisfy the drop dead rule. That is to say, any step that the Rules of Court required was enough to prevent dismissal under the rule. This meant, for example, if the Rules required that an Affidavit of Records be served, then doing so would restart the 3 (or as the case was at the time, 5) year clock. There was no need for the court to “inquire whether the step actually caused the action to advance. The completion of the required step [was] sufficient, in and of itself […]”. Things that were not procedural steps could also materially advance the action towards trial, but a determination by the court would be required to determine if the advance was material or not.

Put more simply, it’s not about what steps you take, but rather the effect those steps cause: substance over form.

However, the Rules of Court changed in 2010 and so too did the approach to applying those rules. This is in large due to a shift in the approach to civil litigation taken by the courts. It is no longer the case that the ultimate goal is to bring an action to trial, but instead to bring it to resolution more broadly, according to the Alberta Court of Appeal and the Supreme Court of Canada.

This new approach is called the Functional Approach, and it better keeps to the foundational principles of the new Rules of Court. While before, mandatory procedural steps would qualify regardless of their effect, now a functional analysis is required to determine if the action was advances significantly. According to the Alberta Court of Appeal, to perform such an analysis the court “inquires whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality.” Whether or not a particular action taken by a party is a significant advance is now always a contextual question; does the action move this specific action towards resolution? Put more simply, it’s not about what steps you take, but rather the effect those steps cause: substance over form.

As a result, even steps that are mandatory might not be a significant advance. In the past, an Affidavit of Records, where required, would always constitute a material advance. Now it is necessary to consider the contents of such an Affidavit. Gone are the days when an irresponsible lawyer could save the action by taking a procedurally required, but essentially meaningless step.

The informal name is quite appropriate; if 3 or more years pass without a significant advance then, on application of the opposing party, the action drops dead.

It’s not all positives though. While the Functional Approach is more in line with the modern principle of civil litigation, the necessity to perform such an analysis can be a burden. The old format of accepting all mandatory steps meant that there was certainty – one could be certain that their actions constituted a material advance. Now, the analysis is heavily based on the individual facts of a given action. A step taken in the course of one litigation may significantly advance the action, but the exact same step in a different case may not.

Many factors must be considered in determining if the step taken in the particular action is a significant advance. For instance, the genuineness and timing of the step are even relevant. If a litigant has every opportunity to take a step, but instead chooses to wait until the 11th hour to do so, the court will take this into consideration when determining if the effect of the step was a significant advance.

Ultimately, clients depend on their lawyers to effectively prosecute their claims and to dispose of actions against them that drag on unreasonably. While not as glamorous as argument on the merits, the answers to questions of procedure are powerful tools toward obtaining favourable outcomes.

Current Issue: July/August 2018

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